assessment of the dworkin-hart debate
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Assessment of the Dworkin-Hart debate Assessment of the Dworkin-Hart debate
Michael B. Williams The University of Montana
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An Assessment o f the Dworkin-Hart Debate
by
Michael B. Williams
B.A. University o f Florida, 2001
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July 2005
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Williams, Michael B., M.A., July 2005 Philosophy
An Assessment of the Dworkin-Hart Debate
Committee Chair: Dr. Thomas Huff
This essay seeks to describe the Conclusions reached in a seminal debate within Anglo- American legal philosophy, specifically the debate between Ronald Dworkin and H.L. A. Hart. Historically this debate has been framed as a dispute over the necessity of conjoining the concepts of Taw’ and ‘morality.’ My assessment of this debate is an attempt to acknowledge the substantial agreement found in the work of both theorists.
Drawing on an analysis of both Taking Rights Seriously and The Concept of Law this essay points out the shared commitment made by Dworkin and Hart to a liberal ideology. Both Dworkin and Hart maintain that some sense of justice in the application and generation of the law must exist and each rebuffs claims that broad moral discretion ought to be employed. This mutual foundation develops into two largely harmonious positions with only a narrow, though substantive, band of disagreement.
In the end, the important differences between Hart and Dworkin regard the scope of law’s relationship to morality, not the coherence or necessity of such a relationship. Both Dworkin and Hart maintain that any legal system must reflect a minimum systemic morality. Dworkin suggests that this morality often develops into a substantive, though restricted, element of the law and Hart seeks to restrict moral content to strictly procedural issues.
Table of Contents
Introduction 1
Parti. H.L.A. Hart 4
Part II. Ronald Dworkin 16
Part III. Hart’s Postscript Response 39
Conclusion 45
Notes 49
1
Introduction
In a recent paper on analytic jurisprudence Brian Leiter makes a case for the need
to move discussion in legal philosophy away from what he calls the “Hart/Dworkin
debate.”1 I agree and the topic of this essay is aimed at finally coming to a conclusion
about the state of analytic jurisprudence. My intention here is to clarify the substantial
agreement that exists in Anglo-American legal philosophy, specifically between H.L.A.
Hart’s positivism and Ronald Dworkin’s early theory of law.2 Contrary to Leiter’s
assertion that “on the particulars of the Hart/Dworkin debate, there has been a clear
victor,”31 argue that the debate itself has been largely exaggerated on both sides. In my
view, the liberal ideology that underlies both theories develops into largely harmonious
positions with only a narrow, though substantive, band of disagreement. In the
following pages, I will argue that the important differences between Hart and Dworkin
regard the scope of law’s relationship to morality, not the coherence or necessity of such
a relationship. In the end both Hart and Dworkin maintain that any legal system must
reflect a minimum systemic morality. Dworkin suggests that this morality often develops
into a substantive, though restricted, element of the law and Hart seeks to restrict moral
content to strictly procedural issues.
I address this debate in order to present a balanced description of the
contemporary state of the analytic philosophy of law. Often the tendency is to sloganize
philosophic or legal theory in an overly reductive manner. According to such reductive
accounts, positivism radically separates morality and law, and Dworkin wants to
inexorably conjoin the two in a grand sense. In fact, each side of this old debate has a
position somewhere between these simplistic extremes. On my account, far from having
2
a clear winner, the Hart/Dworkin debate reaches an agreement of sorts on the necessity of
some minimum moral content of a robust legal system.4 This agreement stipulates the
need for some sense of justice in application and generation of the law, but stops short of
claiming that broad moral discretion ought to be exercised with regard to particular laws.
The remaining dispute then is over the scope of moral discretion in adjudication. As will
become clear, I favor Dworkin’s position that a procedural morality often plays a
substantive role in the interpretation of legal rules.
In an effort to make this case, I begin with an exposition of the positivist position
as espoused by Hart. Hart begins by arguing that a sophisticated account of law (that is
one capable of dealing with a pluralistic society) requires more than a system of primary
rules backed by the enforcement power of a sovereign or the expectations of a
community. On his account, a system of secondary rules is required to pick out what
primary rules are recognized as carrying the obligatory force of law. Hart maintains that
these secondary rules of recognition rest on their being a “proper way of disposing of
doubts as to the existence of a rule.”5 Secondary rules pick out the ways in which laws
are generated, applied and changed. Such secondary rules are necessary because theyf
give body to “the reasons individual members have for acceptance” of a society’s
“various forms of pressure for conformity.”6 That is to say, secondary rules provide a
necessary condition for general acceptance of a legal system, creating a legal duty to
obey primary rules, but not stipulating morally what primary rules ought to be enacted.
Next I take up Dworkin’s criticism of Hart, specifically that Hart stops short of
realizing the full potential of a legal system founded upon agreement to some shared set
of rules. If the system of secondary rules of recognition applies an obligating force to
3
law, it is only because there is an agreement to the principles which support these rules;
that is, the principles of the rule of law e.g. like cases treated alike. The problem with
positivism as Dworkin sees it is that the force of these liberal moral principles is
neglected in all but their obligation giving function (and even there they are given a
“whitewash.”) Positivism has sought to use secondary rules to shield the process of
adjudication from the morality always implicit in the system of laws, obfuscating
systemic legal principles in a search for perfectly conclusive rules. Dworkin argues that
a non-conclusive ethos pervades the system of legal rules and must be accounted for in
legal reasoning and decision making.
In “Hard Cases”7 Dworkin argues, in particular, that procedural morality plays
more than a foundational function, it also plays an interpretive role through the
formulation of legal principles. The idea is that the principles underlying rules can be
applied to give content or a more full form to rules. Hart contends that when cases of
gaps in primary rules arise, giving light to genuine ambivalence, secondary rules call for
the generation of novel solutions. Dworkin suggests that the invocation of moral
principles embedded in the law offers an important clarifying tool for primary rules and
gives a more clear conception of the shape taken by the legal system. The move here is
to draw upon Hart’s notion that legal obligation requires some value-laden predisposition
to a set of secondary rules, effectively bootstrapping this disposition into a meaning
giving heuristic. In this sense Dworkin relies on Hart’s requirements for obligation to
offer a modification of the positivist notion that morality need not play a part in
interpreting primary rules.
4
In Hart’s Postscript reply to Dworkin he points out that there is in fact a good deal
of agreement between the two and follows Elliot Soper referring to Dworkin as a “soft
positivist.”8 Hart’s contention here is that principles are just a complex version of what
he had earlier called secondary rules. Here Hart assents to the importance of non-
conclusive principles in legal reasoning, but claims such principles are merely broad
versions of secondary rules. So where a secondary rule might clearly pick out a valid
primary rule as anything written into the code of Hammurabi, a principle might less
clearly identify a primary rule as maintaining the value of equality. In either case Hart
believes the appropriate distinction between the two is a matter of kinds. His assertion is
that, in the end, “there is no need to accept this sharp contrast between legal principles
and legal rules.”9 I agree with Hart that there is no need for a rigid distinction, but argue
that such a distinction can be maintained and it may even have advantages.
PART I. H.L.A. Hart
H.L.A. Hart argues for a moderate version of positivism’s ‘separability thesis,’
which asserts that morality, as such, has no necessary role to play in understanding law.
Here I point out that Hart’s understanding belies a concept of law that takes as its root a
social contractarian position, and as such a liberal legal morality. I will develop this
position by contrasting Hart’s position with that of his positivist predecessor John Austin,
pointing out how Hart’s positivism moves toward an internal social paradigm of law’s
authority. Hart’s liberalism will be exposited through analysis of his distinction between
primary and secondary rules, which ultimately complement the concept of law as
espoused by liberal political theorist John Rawls.
5
Early in the 18th Century John Austin wrote, “Law... may be said to be a rule laid
down for the guidance of an intelligent being by an intelligent being having power over
him.”10 On Austin’s account, law has two distinct senses, natural law and positive law.
Natural law on this account meant classical natural law, the theory that law was imposed
from a God’s will or outside of man’s prerogative.11 Positive law, on the other hand, is
“set by men to men.”12 The aim of John Austin’s work, following closely on the heels of
Hobbes, was to distinguish sharply between positive law and natural law the proper realm
of law as defined by the social contract. Austin of course endorsed the view of positive
law as the appropriate method of understanding law as the concept is applied to the
affairs of men engaged in social enterprise.
Austin held that the positive law of men to men represented the same essential
structure held by classical natural law, except, rather than God imposing law on men,
politically superior men imposed the law on other men. Law taken in this sense is
broadly construed as a command from a superior authority to a subordinate. Austin
applies this concept of law generally to social conditions of law when he claims,
“In order that a given society may form a society political and independent... two independent marks... must unite. The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons must not be habitually obedient to a determinate person or body.It is the union of that positive, with this negative mark, which renders... a society political and independent.’’13
The idea here is that determination by some single sovereign person or body, which sets
rules or the law of behavior to which the society at large is obliged to conform represents
conceptual human law.
Austin’s conception of law as the prerogative of a society’s sovereign accords
with the conception of a sovereign’s authority as Hobbes envisioned it under his social
contract. Hart, however, modifies Austin’s ‘command theory’ of law transforming the
manner in which the concept of law is understood and thus obfuscating the relationship
between his own position and the political understanding of Hobbes’ social contract.
Hart argues that the command of a sovereign does not imply any duty on the part of
political subordinates. On Hart’s account, the command of the sovereign is much like the
command of an armed gunman; one is “obliged” to obey but has no duty to do so. The
important thing here is to flesh out just how Hart construes an individual’s duty to obey
the law as distinct from avoidance of the harm implied by the sovereign’s command.
Recall that, on Austin’s account, law is the positive and negative system of
commands and punishment predicted by those commands. Hart contends that law as thus
understood is really nothing more than a system predicting punishment, implying no duty
on the part of the subject only a rational expectation of behavior. Hart points out the
counter-intuitive ramifications of such an account writing that it would appear to be a
contradiction to say that a citizen had an obligation but “there was not the slightest
chance of his being caught or made to suffer.”14 This seems perfectly normal to our
everyday usage of obligation, but would entail a contradiction on Austin’s account. Such
criticism of course does not logically preclude the validity of any particular system of
law, it does however point out the difference between Austin’s view of law and the
common notion of legal accountability. The criticism Hart brings to bear on Austin’s
conception of law is that avoiding the consequences of a law does not remove the
authority of that law.
7
Hart contends that the law implies some sort of obligation or duty by the subject,
regardless of the applicability of the consequences. This is not to say that punishment
and law are not linked for Hart, only that the ability to punish does not justify the
authority of law; rather, authority flows in the opposite direction. Hart writes, “the
fundamental objection (to Austin) is that the predictive interpretation obscures the fact
that, where rules exist, deviations from them are not merely grounds for a prediction that
hostile reactions will follow... they are also a reason or justification for such reaction.”15
The validity of the law, then, grants authority to punish the breaking of a law, rather than
the authority to punish validating the right to make rules. The idea here is that obligation
arises from within the system of rules, while only likely choices may be predicted by an
outside analysis of the relationship between rules and punishment.
At the crux of Hart’s understanding of law lays the tension between internal
systems and external systems. External systems are those like Austin’s that rely on an
understanding of rules that limit the normative social system to the likelihood of
Jbehaviors occurring in response to possible punishment as viewed from without. “What
the external view,” according to Hart, “cannot reproduce is the way in which rules
function as rules in the lives of those who normally are the majority of society.”16 Hart
contends that from an internal perspective individuals often, and even usually, make
decisions in accordance with rules of law not to avoid punishment but because they
accept those rules as a guide to conduct. Thus, from an internal perspective “the
violation of a rule is not merely a basis for the prediction that a hostile reaction will
follow but a reason for hostility.”17 The key to law for Hart is that it creates a duty of
8
obligation, which when viewed from without may be seen as a merely predictable
behavior, but to which members of a society feel bound.
Typically, Hart contends that this binding property of obligation associated with
law is understood from the internal perspective, but this leaves room for the external
perspective of both Austin and Hobbes. Rather than moving away from Austin’s direct
rendering of Hobbes’ objective social contract theory of law, Hart is in effect filling in a
missing element of the social analysis of law. Both Austin and Hobbes focus their
concern on the structure of law as understood from the theorist’s perspective; that is,
understanding how authority works to coerce behavior. Hart merely points out that in
fact the internal perspective of the same phenomenon, viz., the individual’s agreement to
or adoption of coerced behavior, must also be recognized to understand law. In
acquiescence to his predecessors Hart writes, “any legal theory anxious to do justice to
the complexity of the facts is to remember the presence of both these points of view and
not define one of them out of existence.”18
In the end, it seems clear that Hart has in mind a fuller conception of law as
understood from both internal and external perspectives. In reconstructing Hart’s
particular concept of Law, vis a vis his commitment to positivism, we will look to the
complexities he describes in two sets of social mandates. In the most primitive lawful
society there must, on Hart’s account of lawfulness, exist some basic primary rules of
obligation, which carry with them some threat of social enforcement. Primary rules are
requirements of behavior, both positive and negative, such as restrictions on the harm of
others and duties to aid the community. In small primitive societies, Hart contends,
primary rules may themselves be enough to create a system of obligation based on a
9
shared standard of behavior. In such a system a shared morality is often at the core of the
system of primary rules, but crucially the morality of the community is not identical with
the law, but helps to structure primary rules.
Hart describes primary rules as the attitude of society “towards its own standard
modes of behavior in terms of which we have characterized rules of obligation.”19
Primary rules then are the rules, often moral ones, a society will choose to govern the
behavior of its members. These governing rules are not merely understood as
“customary” but represent obligatory rules of behavior in society. Hart describes the
primary rules of society as internally recognized by members of society and nearly
universal owing to peculiarities about human nature and society. Among examples of
primary rules are “restrictions on free use of violence, theft, and deception” as well as
others “imposing duties to perform service or make contributions to the common life.”20
The essential character of primary rules is that they are obligatory social norms, which
carry with them the enforcement power of social reprimand, not that they reflect a
standard of morality.
Although all that Hart requires of a lawful community are primary rules, Hart sees
such rules as systemically uncertain in any but the smallest of societies. Hart argues that
a full concept of law in the Anglo-American tradition also includes secondary rules.
Secondary rules supplement the uncertainty of obligation inherent in primary rules and
thus complete the system of social obligation, as Hart understands law. Hart’s
understanding here reflects a liberal political ethic because it supposes the members of
society hold belief systems so divergent that they are incapable of adhering to, or more
importantly fully grasping, a social system of primary rules which is not clearly
10
illuminated by something more than a shared understanding. The idea here is that law is
a system of obligation identifiable to the community at large so that in a diverse
community law must be understood in more specific terms than social norms.
Social norms, even those that are widely enough accepted to carry with them the
force of significant social pressure, fall short of representing law for such large, diverse
communities, on Hart’s account, in three key areas. Within a small and closely-knit
community it may be clear what social expectations exist. One knows, for instance, what
behaviors one’s parents tolerate, but within an expanded community social norms may be
quite unclear. Thus primary rules fail to offer the level of certainty implied by law.
Secondly, altering primary rules to fit the changing circumstance of a society will require
a gradual and seemingly unintentional altering of rules over time as society’s members
themselves change; otherwise the law will have an unacceptably static character. Finally,
Hart contends the reliance on mere social determination of rules and enforcement creates
inefficiency in the application of laws, i.e. the determination of when a law has been
disobeyed, inconsonant with his greater conception of law. Hart purposes to solve these
deficiencies in law as a system of primary rules of social obligation by including
secondary rules.
In order to meet his first objection to primary rules, namely uncertainty, Hart
introduces a secondary rule he calls a ‘rule of recognition. ’ The rule of recognition
asserts that there must be some specific “feature or features possession of which by a
suggested rule is taken as a conclusive affirmative indication that a rule of the group is
supported by the social pressure it exerts."21 Recognition then may entail that a specific
rule once merely socially understood is written down in a constitution or may broaden to
11
include a body of common law understood in terms of past decisions. The point is that
there should be some way to authoritatively identify those rules that are in fact primary
social rules. Without a rule of recognition, Hart contends there can always be dispute as
to what primary social rules actually exist and what social norms are mere convention; in
other words, a rule of recognition allows one to distinguish which norms carry the force
of obligation and which do not.
With rules of recognition in place, the flux relied upon within community norms
to meet changing circumstance can become static. In order to avoid this difficulty, Hart
suggests that ‘rules of change’ be codified as a secondary rules. Rules of change are
meant to allow for the introduction, revision and repeal of primary rules as changing
circumstance warrants. As a general understanding, we may think of rules of change as
the legislative or other rule making systems, whereby a society sets forth a body of law.
Of course, “there will be a very close relationship between the rules of change and the
rules of recognition: for where the former exists the latter will necessarily incorporate a
reference to legislation as an identifying feature of the rules.”22 The point here is that a
system including rules of change relies on those rules to provide a conclusive indication
that the rule carries with it obligation and is not merely a general habit. Rules of change
then underlie the rules of recognition in that they provide the groundwork for picking out
what is to be recognized as a social obligation of the individual.
Once there is a method of determining what should be recognized as an obligation
in society, the final difficulty to be overcome with primary rules, as Hart sees it, is
determining when the rule actually has been broken. Although seemingly a
straightforward enough matter, there is often disagreement amongst persons as to what
12
has occurred as well as applicability to the rule as presented. The remedy Hart offers is a
secondary ‘rule of adjudication’ which “besides identifying the individuals who are to
'y'xadjudicate, such rules will also define the procedure to be followed.” The idea here is
that a society confers decision-making authority on a judge or court, but moreover it sets
the parameters for what will be considered an adequate method of judgment. The rule of
adjudication thus also serves as a rule of recognition since judgments made in accord
with it should have the force of law, while those in disaccord will not.
In summary, Hart’s conception of law requires a system of social primary rules
with the addition of three secondary rules, each aimed at clarifying the application of
specific laws or rules. Hart’s principal criticism of social norms as primary rules it that
there is a lack of certainty as to what those rules are in fact. He argues that secondary
rules of recognition, are supported by both rules of change and adjudication, and thus
solve the problem of uncertainty.
The difficulty of uncertainty in law was also a subject of Section 38 of liberal
theorist John Rawls’ A Theory o f Justice. In that section Rawls writes, “A legal system is
a coercive order of public rules addressed to rational persons for the purpose of providing
the framework for social cooperation.”24 Rawls argues for ‘justice as regularity’ by
pointing out the sense in which obligation is justified in a liberal system only by an
objective understanding of the law, which provides a framework for cooperation. That is,
in order for law to entail obligation as Hart contends, it must be just in the sense that it is
not a matter for subjective judgment, but an agreement by subjects to an objective rule.
Hart himself defends this thesis of the justice of law implicitly when he claims that
primary rules alone cannot constitute law in a large community. The intention of Hart’s
13
secondary rules is in fact to assure a certainty or objectivity about law, and thus to allow
obligation once social agreement is made. Hart’s tacit contention is that social
cooperation is only achievable with secondary rules identifying and clarifying primary
rules.
While Hart maintains that he wants to describe law as it is, not as it ought to be,
by describing law as reliant upon secondary rules he demonstrates an implied
understanding of law as based on some of the values of political liberalism. Hart
emphasizes the individual’s right to know the law if it is to be obligatory, and thus
attributes a specific moral content to the law, namely a principle of equality in
application. The idea implicit in Hart’s call for a rule of recognition imbedded in
secondary rules o f law is that for law to apply to persons it must be accessible by them.
Here we see a separation of law from a robust moral content in the primary rules, but an
acceptance of some minimal morality in the secondary rules. The minimal morality
included by Hart’s secondary rules is simply a means of addressing the morality implicit
in the notion of an obligation to obey primary rules. In this sense then Hart’s minimal
moral content provides a moral justification for the system of rule creation and
application, not for specific primary legal rules.
Hart’s strong liberalism points toward a straightforward method of understanding
law as including a series of secondary rules, which describe what a valid method of
finding the law looks like. On Hart’s account of law as a system of rules, primary and
secondary, secondary rules pick out just what counts as a primary rule and how this is to
be decided.
I am inclined to accept Hart’s method of understanding law for the sake of clarity,
but as Ronald Dworkin points out, Hart’s thesis, “stops short of those puzzling, hard
cases that send us to look for theories of law.”25 Dworkin’s criticism of Hart is that in
penumbral cases where the shadow of a law seems to apply, but the primary rule itself is
ambiguous, Hart is unable to offer a secondary covering rule and must then reject the
case as outside the scope of existent law. Hart claims that, in so called ‘hard cases’ a
judiciary using individual prerogative or strong discretion is forced to create law.
Dworkin, by contrast, argues that there are moral principles underlying primary rules that
may be drawn out by the judiciary in hard cases so that rather than creating law, the
judiciary in a sense discovers the law. Hart’s theoretical understanding of law requires
that the law be announced by rule, and while a secondary rule may be that judges create
law in cases where there is none, without a specific primary rule with the appropriate
pedigree under the rule of recognition, no primary law exists for hard cases.
I have already discussed the rule of recognition in Hart’s theory of law, but I think
it is important to more fully explicate this concept in connection with what Hart takes to
be legal validity. A rule of recognition is meant to provide judges of law “with
authoritative criteria for identifying primary rules of obligation.”26 Of course, the fact
that a rule of recognition provides authoritative criteria does not imply that those criteria
can be easily applied. Within a complex legal system, the rule of recognition is liable to
be complex as well, often including reference to a written constitution, enactment by
legislature and judicial precedents. An ordering system is required in such cases in order
to determine which of these ‘sources’ of law is primary in the case of conflict. “It is in
15
this way that in our system ‘common law’ (judicial precedent) is subordinate to ‘statute’
(legislative and constitutional).”27
Importantly Hart wants to point out that judicial precedent, although subordinate,
does not derive its authority from statute, but from a secondary rule of recognition that
picks out judicial decisions as valid, though subordinate, sources of law. It is important
for Hart to make this point clear in order to disabuse his reader of the notion that all law
essentially comes from legislation and is merely interpreted by the judiciary. To the
contrary, on Hart’s account, a judge makes internal statements of the scope and nature of
primary rules, statements that presuppose the external validity of the system and
“constitute a reason for his decision.”28 The idea here is that a judge does not refer to the
validity of legislative regulation, thereby justifying primary rules in an external manner
as a fact of existence in a certain society. Rather, the judge determines if a primary rule
meets the criteria of the rule of recognition presupposed to be valid for the society, and
thus decides the case at hand in accordance with a rule whose existence is a matter of
fact.
The rule of recognition is a manner of determining primary rules not in accord
with their power to predict the behavior of society, but in accord with whatever system of
validation is in fact applied by society. On Hart’s account, judges using the rule of
recognition demonstrate the rule without any justificatory aims and thereby pick out
primary rules without demonstrating any validity to the rule other than its conforming to
the rule of recognition. In instances where legislation, the primary source of law, is silent
or ambiguous, subordinate sources of law such as the courts are recognized as having
authority to create law. Yet, under the rule of recognition no appeal is to be made to an
external validation, rather the new primary rule is taken to be valid because it arises from
a recognized source of law. In hard cases, Hart contends the judge has full discretion to
rule in any manner not in conflict with other more primary sources of law, in virtue of
being recognized as a valid source of law.
Hart is arguing for a method of understanding the laws solely in virtue of an
internal perspective, which does not attempt to validate the system of rule recognition,
but merely relies on it as a fact used to pick out primary rules. Rules on this account are
a matter of fact in virtue of their adhering to the system of rules of recognition, and in
that sense are essentially separate from any moral of justificatory claims made on their
behalf. Unfortunately, these factual rules often provide no guidance in cases where
legislation is vague or ambiguous, leaving subordinate sources of law free reign to dictate
primary rules as they see fit in virtue of their position under the rule of recognition.
Ironically, it is just this rule of recognition that is intended to provide the certainty in
matters of law, which Hart would require to create a real obligation in persons.
PARTII. Ronald Dworkin
In his ”Model of Rules I, ” Ronald Dworkin responds to Hart arguing that
positivism’s “central notion of a single fundamental test for law (the rule of recognition)
forces us to miss the important roles of standards that are not rules.”29 Dworkin’s
position is that, by focusing exclusively on rules, positivism neglects the importance of
standards of both policy and principle in constituting laws and thus unnecessarily binds
the judiciary to exclude the moral standards implicit in the law. On Dworkin’s account,
there is a necessary moral element implicit in the law, which may be drawn upon in hard
cases to shape understanding without creating new law. My claim here is that Dworkin’s
17
reliance on moral principles implicit in the law includes the substantive moral principles
of a liberal political state allowing an expansion of the foundational procedural values
found in Hart.\
Unlike Hart’s position that law is a matter of fact picked out by rule, adjudication
on Dworkin’s account relies not on facts about the law but on a range of moral positions
derived from the pertinent, extant body of law. Dworkin’s idea is that there is an ethos of
the law that is applicable to any particular situation. When clear rules do not apply
judges then ought to look towards this ethos of the law for answers. I take myself to be
reflecting Dworkin’s more positivistic position from his ‘Hard Cases’ paper, rather than
the weaker natural law position espoused in his reply to David Richards in the Appendix
to Taking Rights Seriously. Richards had argued that the particular political morality of
a legal system is a matter of fact about which one may be either right or wrong,
Dworkin’s response claims that, in principle, nearly any morality is available to judges. I
hold the view (which I believe to be Dworkin’s earlier position) that the institutional
political morality of a particular legal system is circumscribed by previous legislation and
adjudication, but remains abstract enough to be a matter of interpretation rather than of
fact. Such a reading is in line with the notion of a legal ethos, in that while a community
may have an ethos, equally rational judges often interpret that ethos differently. For
example, both Democrats and Republicans claim to have the moral pulse of America.31
Likewise, distinct members of the judiciary may each claim to have the moral pulse of
the law and the legal system.
Dworkin’s suggestion that judges appeal to the ethos of a specific body of laws
provides a sort of weak discretion. Judges on such an account do not create law; they
interpret the ethos of the law in adjudication claims not specifically covered by rule. This
allows discretion because equally reasonable interpretations may differ, just as political
judgments of the community’s ethos may differ. Yet, the discretion here is clearly
weaker than those supposed by Hart, because judges are constrained by the ethos implied
by the rules of law and thus are not free to decide however they will. By allowing this
weak discretion in legal interpretation, Dworkin confirms the need for consistency in
understanding the law, thus maintaining Hart’s criterion of obligation, while providing
for a body of morality, an ethos, which may aid in the integration of the law and legal
system.
In describing Dworkin’s approach to understanding law, what we must do is
decide just what he means by standards, describe how these standards augment law as a
system of rules, and analyze how they allow for legal interpretation while constraining
the judiciary to a standard of consistency.
Standards in Dworkin’s terminology consist of principles and policies. A
principle in this specific sense is “a standard that is observed... because it is a
requirement of justice or fairness, or some other dimension of morality.” A policy is a
standard that “sets out a goal to be reached, generally an improvement in some economic,
political or social feature of the community.”32 This distinction is often collapsed since
principles are sometimes construed as policies and vice versa, such as when the principle,
“no man should gain from wrong doing,” is stated in terms of the goal of society being to
protect such a principle. While this distinction will prove important later, for now all that
need be understood is that standards are distinct from the rules from which they are
derived.
19
Standards deviate from rules in the following significant sense, “rules are
applicable in an all or nothing fashion. A principle... does not even purport to set out
conditions that make its application necessary.”33 If the circumstances a rule stipulates
are present, and the rule is valid, then the determination dictated by rule must be accepted
wholly. Dworkin takes as an example the ‘three strikes and you’re out’ rule of baseball.
If a batter takes three strikes in a game of baseball, the circumstance stipulated by rule is
met. An official who takes the three strikes rule as a valid rule of baseball, which
presumably all officials must, must then call the batter out. There is no room for
deviation from the consequences stated by rule. On the other hand if a batter takes one or
two strikes, the rule does not apply and in consequence, the rule provides no guidance for
action.
Principles, or standards, on the other hand, state a general aim. In any
circumstance where that aim is at all pertinent, the principle may be applied as a guide for
action. We can think of principles then as key maxims that go into the make up of an
ethos. Principles, that is, are the structure of an ethos, which lies in the law. As an ethos
is not definitive or concrete, the application of principle is not wholly determinative of
the outcome; it provides a reason for an outcome, which may be judged more or less
compelling given other standards also germane to the decision at hand. Dworkin points
to the famous decision in Riggs v. Palmed4 as an example of judicial use of legal
principle.
The crucial question in Riggs v. Palmer was, ‘If one kills the owner of an estate to
which he is heir does he still have a right to his inheritance?’ The court in this instance
states “statutes... if literally construed... give this property to the murderer.” Thus by rule
20
the property ought to be given to the inheritor/murderer. In the opinion of the Court,
Justice Earl claims, “all laws... may be controlled by general fundamental maxims of the3 c
common law.” The court claims that there is a general, fundamental maxim of the law
that “No one shall be permitted to...acquire property by his crime.”36 Dworkin
understands this fundamental maxim to be an example of a principle of law. In other
words, the legal ethos behind rules about inheritance, murder, legal profits and harms etc.
indicates the principle that one should not profit from inflicting illegal harm. This
principle is not an explicit rule of law, but is a part of the spirit or ethos of the law.
According to Dworkin, “All that is meant, when we say that a particular principle
is a principle of our law, is that the principle is one which officials must take into3 7
account, if it is relevant, as a consideration inclining in one direction or another.” The
prefatory “all that” in Dworkin’s claim may strike some as odd. It seems there is a rather
large claim being made here, namely that judges must take into account principles
gathered from the ethos of applicable law. It seems this places a burden on the judiciary
to interpret in almost all instances the morality or ethos upon which the rule of law is
seated. This is no mean feat, but Dworkin is correct in pointing out that the principle
need not be decisive only that it must point in a direction.
So while Justice Earl, along with a majority of the Court, found that Elmer Palmer
could not benefit from killing his grandfather, it could have been otherwise in spite of the
principle used in the decision. If some other principle of law were found more weighty in
the particular circumstance, Palmer may well prevail. Say that, for instance, the killer
wrote a memoir detailing his grandfather’s murder, intending it to prevent future murders.
One might appeal to a principle that persons should gain from their attempts to prevent
21
wrongdoing, and allow the financial gain. Importantly, the existence of one applicable
principle in law does not preclude the existence of other applicable and contradictory
principles. A judge recognizing each principle is left with discretion to decide which
principles, if any, is most weighty. Principles help judges reach an understanding of a
system of law by offering a scale of the relative importance of conflicting claims on
justice, but do not dictate necessary decisions as do rules.
Without the certainty of dictating necessary outcomes, it is hard to see how
Dworkin’s principles can be accorded with Hart’s requirement of law, that it creates
obligation in virtue of being applied uniformly through a rule of recognition. Indeed
Dworkin himself argues that Hart’s thesis of obligation must be rejected if his own
account of principles in law is to be taken seriously. However, Dworkin here is assessing
the strongest version of Hart’s theory of obligation, particularly emphasizing the notion
of uniformity or certainty.38 I contend that, with a broader understanding of the term
certainty in recognition, Hart’s rule of recognition is not so restrictive that principles
cannot be applied in various ways. Much of Dworkin’s “The Model o f Rules II” is spent
refuting Hart’s concept of obligation in strong and weak forms (never addressing the type
of weakened sense of certainty I suggest.) Nevertheless, I will take some care to make
this point clear.
Dworkin claims there are two senses in which one can consider principles for the
purposes of reaching legal decisions:
a) We might treat legal principles the way we treat legal rules and say that some principles are binding as law and must be taken into account by judges and lawyers who make decisions of legal obligation...b) We might, on the other hand, deny that principles can be binding the way some rules are. We would say, instead that in cases like Riggs, the judge reaches
22
beyond the rules that he is bound to apply for extra-legal principles he is free tofollow if he wishes.39
On Hart’s account of the rule of recognition, option b is perfectly viable; a rule may
recognize the judge as a valid source of law on the judge’s own terms. Any moral
principles the judge sees fit to utilize then become law in virtue of judicial
pronouncement, but must not be considered law in their own right. For Dworkin morality
itself is part of the law and not legislated by the judiciary, but applied as in option a. Yet,
if the application of morality as such is to be read as consistent with Hart’s rule of
recognition, there must be some socially agreed upon rule for how the obligating
principles are to be distinguished from all others.
The key to understanding the rule for determining what constitutes a legally valid
obligating principle is found in Dworkin’s description of discretion. Judicial discretion,
according to Dworkin in The Model of Rules /, “like the hole in a doughnut, does not
exist except as an area left open by a surrounding belt of restriction.”40 So unlike Hart’s
version of discretion wherein moral principles are to be applied in an unrestricted fashion
by a judiciary empowered to create law, Dworkin’s judge has the authority to apply
moral principles according to his or her discretion, which means freely within some set of
restrictions. These restrictions on judicial discretion represent what one could call a
minimal rule of recognition. That is to say, there is a standard of what principles may be
applied to a legal question at hand, and we may refer to whatever that standard is as a rule
of recognition.
Recall that the rule of recognition is a supplemental device to primary rules
intended to ensure objective certainty about law and thereby justify the obligation of
citizens to that law. There is no requirement that the rule of recognition is simple or
23
direct, only that it authoritatively picks out what sort of argument counts as legally valid
in virtue of pedigree. Dworkin’s version of judicial discretion does not claim that judges
are “simply not bound by standards,”41 “only that his decision is not controlled by a
standard furnished by the particular authority we have in mind.”42 On Dworkin’s
account, then, there is some standard for what makes a principle a legally valid standard
of judicial decision-making. Further, Dworkin contends that the standard of judging
legally valid principles has the same importance as a rule.
A judge who disregards applicable rules will most certainly be chastised for
failing to fulfill his or her obligation to the law. Likewise, the judge who neglects
applicable principles in making a decision may be criticized as being disobedient. If the
Court in Riggs, for instance, had failed to take account of the principle that ‘no man
should profit from his own wrong doing,’ the Court would have failed in its duty to
consider the appropriate principle and the plaintiff had a right to have that principle
considered. According to Dworkin, “We mean no more, when we say that a rule is
binding upon a judge, than that he must follow it if it applies, and that if he does not, he
will on that account have made a mistake.”43 The idea here is that those involved in the
legal process should have some means of determining what are appropriate principles to
be applied in a given circumstance.
The question, then, is what sort of standard Dworkin has in mind for
understanding the restricted scope of judicial discretion in applying moral principle to the
understanding of law. Dworkin’s argument supposes that “no mechanical procedure
exists for demonstrating the rights of parties in hard cases,” and thus, “reasonable judges
and lawyers will often disagree about legal rights.”44 Yet, if one party to the dispute has
24
a preexisting right to win, as Dworkin contends, and there should be admonishment of
judges who fail to consider all relevant principles, then there must be some way to
determine which principles are relevant and ought to be considered. Indeed, in his “Hard
Cases ” paper Dworkin outlines a conception of the ring of restraint that constrains
judicial discretion in understanding the law, vis a vis standards or principles.
Dworkin invokes the distinction raised earlier between standards as matters of
policy and standards of principle to begin the restraint of judicial discretion in a certain
way. Policy based principles, recall, characteristically seek social, economic, or political
goals. Judicial arguments of policy, then, would seek to justify legal decisions based on
the advancement or protection of some collective goal of the community as a whole.
Principles, on the other hand, that reflect a statement of fairness or justice observed by a
society’s morality seek to justify decisions based on respect for some individual or group
right. Dworkin proposes the thesis that judicial decisions in hard cases “should be
generated [only] by principle not policy.”45
Dworkin’s claim is that, in cases where there is no clear history of rule or judicial
decision making to apply, a judge may rely on principle in formulating a decision.
Principle here is not a code word for strong discretion, rather principle is understood as
reflecting the institutional morality culled from behind historical rules such as legislation
and common law. The ethos of the law is the driving force of such principles and on
Dworkin’s account ought not be confused with the policy direction of a community. The
nature of an ethos is vague and here Dworkin is clarifying that legal decision making
must rely on the ethos embedded in the law. This move takes the judge’s discretion away
from making localized political decisions and forces a circumspect attention to the ethos
25
of extant law. Principles, Dworkin argues, reference “the implications of trends of
judicial and legislative decisions.” In this sense previous law, implies principles,
foreshadows them. Such previous implication seeks to satisfy Hart’s condition that any
legal system be consistent if it is to be obligatory.
If principles play a role in creating decisions, though, it seems there is a feedback
loop in effect. Principles used in earlier cases, surely affect the outcome and trend of
current legal decisions. Such a system seems likely to reinforce certain early moral
features implied by the law, and thus may move toward alleviating Devlin’s concern
about a morally integrated society. Yet, Dworkin’s system stops short of being an
ossification of any specific morality. Principles reference each other in the loose sense
that they are developed alongside other principles and often in response to them. But
development of principles in response to others implies some dissention in the morality
underlying the law. There is on Dworkin’s account some reasonable moral disagreement
within the law. Principles often conflict as rules never can, and in this sense “principles
“hang together” rather than link together.” 46
Dworkin’s position that standards of principle and not policy may be used to
direct judicial discretion is based on what he calls a “rights thesis.” The rights thesis is
that “judicial decisions enforce existing political rights.” Since rights act as a trump on
the general welfare interests of policies, reliance on standards of policy for legal
interpretation has the flaw of violating the rights of individuals. Dworkin argues that,
courts have a responsibility to enforce the principles underlying law, which, as a matter
of form in liberal states, act as a check on the majoritarian interest of policies. Principles,
in Hart’s terminology, reflect a preexisting obligation that corresponds to rights in the
26
rights thesis. Policies on the other hand are decisions about the present aims of a society
and thus cannot be obligatory on Hart’s account. In supposing judges ought to draw on
principles and not policies Dworkin’s “rights thesis” thus takes as its practice the liberal
obligations Hart notes in legal decision making.
Principles as we have seen are not concrete decision-makers like rules; rather
many competing principles may be applicable to a question of law and all Dworkin seems
to require of a judge is that he or she consider and weigh these competing principles. The
judge on Dworkin’s account is required to argue for the supremacy of one principle to
another. Crucially, for Dworkin the institutional history of rights does not oppose
judicial discretion, it aids in the explanation of the disposition of present rights.
According to Dworkin, “judges must make fresh judgments about the rights of the parties
who come before them, but these political rights reflect, rather than oppose, political
decisions of the past.”47 The idea here is that when judges look to applicable rule and
precedent and find no judgment mandatory, as in hard cases, they must look beyond those
rules and reflect on the institutional morality supporting them. It is only through such
reflection that judges can, by exercising weak discretion, decide hard cases consistent
with the rule of law.
In an effort to sort out just what position Dworkin takes (or at least which one I
wish to endorse as a viable candidate for accounting for the important principles of both
Hart and Dworkin) we should make clear the distinction between the Dworkin of Hard
Cases and Dworkin of his Appendix Replies. To this end I will refer to Dworkin of Hard
Cases as the early Dworkin and Dworkin’s later incarnation as the late Dworkin. As a
brief sketch we might say the early Dworkin requires that legal principles be constrained
27
in such a way that not any principle could count as implied by the germane body of
extant law and the late Dworkin backs away from this level of restriction at the expense
of his ability to provide a satisfactory rule of recognition.
In “Hard Cases” the early Dworkin argues that principles are implicit or
embedded in earlier decisions and are legally binding if they figure into “the best
justification”48 of those decisions. “The judge very rarely assumes the character of
independence,” Dworkin claims, “He will always try to connect the justification he
provides for an original decision with the decisions that others have taken in the past.”49
This connection, however, is not like the connection of rule; rather, it is the connection of
a morality that hangs behind the system of rules. The idea, then, is that a judge should
confront the myriad of possibly conflicting moral principles lying behind the system of
rules, and weigh these rules against one another, ultimately using the principle that most
consistently explains the system of law to decide the case.
The rights thesis of the early Dworkin demands an “articulate consistency,”50
viz., principles must be built from institutionally preexisting rights, not abstracted from
any broad background morality judges see fit to apply. In this sense, Dworkin has clearly
met Hart’s challenge of consistency for legal obligation. But the doctrinal requirement of
articulate consistency appears to present a certain problem for the use of judicial
discretion even in the weakened sense described above. The difficulty here is that a
judge in a hard case may disapprove of past precedents that lean toward the elimination
of the political rights of citizens. In such a case, the judge must take into account the
misguided institutional morality and, it would appear, be constrained to perpetuate moral
28
injustice. In light of this difficulty the rights thesis appears committed to “a false opinion
about what these rights are.”51
The early Dworkin argues that rather than view the judge as entirely constrained
by the interpretation of a past judiciary in further elucidating institutional rights, judges
must be free to review the institutional moral reasoning implied by past precedent.
Without such evaluation Dworkin believes the rights thesis must fail to truly protect the
institutional political rights of citizens. In an effort to describe how such legal decision
making might be both a consistent and accurate reflection of the institutional morality in
such cases, a more detailed account of “the special qualities of institutional rights... and
the particular qualities of legal rights, as a species of institutional rights”52 must be
offered. The aim of such an exposition is to develop in just what sense the early Dworkin
views judicial discretion as a development of institutional rights and duties.
The rights thesis relies on judges to elaborate the specifically legal rights of
citizens in hard cases. Yet, there are several other types of rights that might be confused
with legal ones. For one, general background rights may appeal to a judiciary. Use of
these rights would entail what we have called strong discretion. Background rights are
outside of the institutional morality, and in this sense reflect general ideals of political
philosophy. As an example, Dworkin uses the institution of chess. There are certain
regulative rules that fix the rights of chess players. A direct appeal to general morality, or
background rights, is insufficient to make a claim of institutional rights. Thus, in a chess
match “no one may argue that he has earned the right to be declared the winner by his
general virtue.”53 Each player has consented to abide by the rules fixed for the playing of
chess and those rules alone constitute their respective institutional rights.
29
In hard cases, such as Russian grandmaster Tal’s supposed intimidation of
Fischer, the difficulty is deciding if the rule of forfeiture due to “unreasonable”
annoyance applies. In such cases the chess referee must decide based on the character of
chess, he must, that is, “construct the games character... not to supplement convention,
but to enforce i t ”54 The referee must ask herself what role psychological intimidation
might play in an intellectual game. This will require decisions about the nature of
psychological forces and intellectual activity, each specifically regarding the game of
chess. The idea is that the referee must test answers to questions about intimidation and
intellectual activity that oscillate between the appropriateness and inappropriateness of
such activity to the game of chess. The rider “to the game of chess” requires that the
referee draw out a particular conception of what intellectual activity is in terms of “the
facts of the institution whose character he must elucidate.”55
Crucially, in the above example, the autonomy of the institution of chess from
external factors, like private morality, insulates the official’s duty and the rights of
participants. This insulation is complete in the case of chess since the institution itself is
fully autonomous. Thus, the referee is required to interpret or elaborate the concept of
unreasonable annoyance within this insulated institution, not amidst general background
rights. The general justification of the institution itself is germane since it dictates the
nature of the game as intellectual, but outside factors are clearly to be avoided since
participants have consented only to the autonomous ground of the game.
The autonomy of legal rights, like chess rights, follows from the insulation of the
activity from outside issues. Unlike chess, however, legal rights are, on the early
Dworkin’s account, only semi-autonomous. That is legal rights are connected to a
30
broader game than simply affairs of court. In particular legal rights are connected by
their origin with political rights. Having sprung initially from political enactments, legal
rights in hard cases “turn on contested [political] concepts whose nature and function are
very much like the concept of the character of a game.”56 That is the nature of the
political institution, like the nature of chess, must factor into the interpretation of rules of
law, just as the character of chess as an intellectual game factors into an interpretation of
what unreasonable might mean.
The early Dworkin relies on two primary bridges to span the divide between
political character and legal rights; these are “the idea of the ‘intention’ or ‘purpose’ of a
particular statute and “the concept of principles that underlie the positive rule of law.”57
In short, these ‘bridges’ are devices for applying a general political theory, a character of
the game, to actual decisions in jurisprudence. If a judge does not accept the general
political theory that justifies legal practice, she will not be able to appropriately exercise
discretion in hard cases. Such a case would be like the chess referee who refuses to
accept the nature of chess as an intellectual game, instead viewing as a game of chance,
say, and yet proposes to elucidate a rule about what would be unreasonable. Such
elucidation is impossible, or at least misguided, without the correct understanding of the
character of the system within which such rules operate.
Broadly, the early Dworkin supposes that two main features of political rights
figure into the character of the game within which legal rights operate. Legislation is that
body of law created by some governing body, which is applied via the judicial system in
the form of legal rights. The intent or purpose of such legislation then provides a bridge
for the elucidation of these political characteristics in legal hard cases. The common law
31
is the other piece of preexisting political rights of which the judge in a hard case must
take account. The common law in this sense provides a bridge to legal rights in the form
of the principles that underlie previous jurisprudence. So the early Dworkin would have
the description of legal rights in hard cases constrained by two central features of the
political institution of which the legal system is a part.
In an effort to flesh out the process of interpretation via intent of legislation and
the principles implied by the common law, Dworkin suggests a perfect judge, talented in
all aspects of such interpretation, named Hercules. Hercules task is to develop a heuristic
with which to interpret hard cases, which will, of course, involve an analysis of
legislative intent and the principles of the common law. In analyzing intent, Hercules
must address the various bodies of legislation, particularly the constitution (supposing
there is one) and statutes. In providing a view of the principles of common law, Hercules
task will be to derive moral context from precedent in a manner that forms the most
consistent web, picking out only a few cases as past judicial mistakes.
In analyzing constitutional legislation Hercules “must develop a theory of the
constitution, in the shape of a complex set of principles and policies that justify that
scheme of government.”58 So much like the case of chess, the judge must understand
what justifies later rules in terms of the foundational justification of the entire game. If
the constitution argues for a schema of representative democracy, this argument must be
reflected in later decisions, just as a chess referee must use the intellectual character of
chess in later arguments.
Legislative intent to generate principles of law is found in more specific bodies
like statutes, which offer greater clarity that the broad justification provided by
32
foundational institutional documents, like constitutions. Moreover, Hercules must attend
to intent of statutory legislation in light of its need to be consistent with the
aforementioned understanding of the broader constitutional scope of legislation. When
opposing interpretations of a statute might both be applied in accord with broader
political rights, the key for Hercules will be to determine “which offers a better
justification of the statute.”59
It is important to note that, the idea here is that the judge ought to determine what
interpretation of statute best fits into the justification given for the statute. In hard cases
where such justification is ambiguous, the judge does not attempt to determine what the
legislative body might say had they recognized this ambiguity. Rather, the judge in a
hard case is obliged to determine which reading of the statute, as written, best fits into the
broad justification for the constitutional or political system of which the statute is a part.
In this sense the authority of a statute does not run out as Hart suggests, rather a judge
must use arguments of political structure to determine what the legislator has done in
drafting a statute within a particular political context.t
So far, Hercules has developed a sense of the institutional political morality, the
arguments that justify the state, embedded in its constitution and has used these
arguments to determine what an ambiguous statute implies. Such a reading places the
intent or purpose of legislation in the broader context of the arguments that support
legislative authority to make such determinations. There is of course a decisive move
away from reading intent as a historical fact about a legislative body in favor of viewing
statutes as the development of a preexisting argument.
33
In developing principles within the common law, Hercules must maintain the
methodology of advancing previous arguments. Unfortunately, previous legal decisions
most often fail to offer the canonical form, however vague, offered in statutes. It will
then prove difficult to determine “what parts of famous opinions should be taken to have
that character.”60 In fact the decision itself and the principles which justify it, rather than
its form as a statute are all that Hercules may have to appeal to in interpreting precedent.
The enactment force of precedent then is not limited to its “linguistic limits” as is the
force of a statute. Rather, the principles generated in precedent have a “gravitational
force” that extends beyond the “particular orbit” of the initial case.61
The difficulty for Hercules will be to decide just how far beyond the orbit of the
initial case, the gravitas of the principle present in precedent, will extend. In the end,
Hercules must “limit the gravitational force of earlier decisions to the extension of the
arguments of principle necessary to justify those decisions.”62 The rationale for the
above claim is that, as we discussed earlier, arguments of policy can have no appeal to
Hercules except in the enactment power of statutes. That is, policy concerns do not
generate legal rights, as is the form of principles, rather they serve some collective goal.
The principles behind earlier decisions, however, must be taken as part of the institutional
morality Hercules is committed to elaborating as a method for adjudicating competing
rights claims in hard cases.
The real difficulty for Hercules comes in the myriad of principles judges routinely
see as embedded in the common law. If the rights thesis is to hold, Hercules must
“construct a scheme of abstract and concrete principles that provides a coherent
justification for all common law precedents.”63 In other words, the jumble of principles
34
found in previous case law must be woven into a relatively seamless web of justifications
that do not contradict one another. In order to form this seamless web the early Dworkin
suggests that the principles developed be ordered vertically to provide distinctions of
authority, determinations of rank of importance in the overall argument, and those at the
same level must not be contradictory. The idea is that principles of the common law be
developed in accord with one another, and in the case of disagreement there be an
ordering principle that justifies why one principle takes precedent. Further, the ordering
principle itself must be a non-contradictory argument within the overarching institutional
structure.
On the early Dworkin’s account, there may remain some disagreement between
reasonable judges who have a different ordering structure in mind. In such cases
divergent accounts of the hierarchy of principles, or even which principles are valid, may
emerge. It is just such a disagreement judges often face in hard cases. The role of
Hercules in such instances is to continue to develop a consistent picture o f the
relationship between principles in the form of the soundest argument. Over the course of
time different judges elucidating principles of law will develop an increased
understanding of the direction in which an argument ought to proceed in order to best
justify the institutions political morality.
In reading the early Dworkin, we see a reliance on the notion of there being a
best argument to be made. That is, it appears the early Dworkin is arguing for the
possibility that one, albeit a “Hercules,” could discover the best interpretation of
principles embedded in the law and thus achieve the soundest argument for rights based
on an institutional political morality. David Richards, takes the extension of the notion
35
that there is a best interpretation to mean that the morality of a system, the principles of
law and the underlying institution, is a matter of fact to be discovered.64 Richards
supposes that Hart’s positivism must make room for the “rich middle ground between
rule and untrammeled discretion, namely, the judicial invocation of principles claimed to
underlie previous precedents or encapsulated in the form of legal maxims.”65 This belief
stems from the understanding of principles as matters of fact about legal systems, facts
that must be allowed into Hart’s rule of recognition. It is just this sort of view of
principles as facts that might impose upon Hart an obligation to accept such principles.
Yet the late Dworkin has rejected this understanding of principles as mere matters of fact.
The late Dworkin, in the Appendix to Taking Rights Seriously, points out that
Richards understands principles to be a matter of deduction, so that, “if two lawyers
disagree over whether a particular principle is ‘legally binding,’ one of them must be
making a logical mistake.”66 This understanding is of course incorrect, given our earlier
discussion of principles in which we saw that, “reasonable lawyers and judges may
disagree.”67 It is not necessary that a logical mistake is being made, rather an incomplete
image of the body principles may be at fault for the mistake. The point is that conflicting
principles can both correctly be attributed to the same system, though not perhaps in the
correct manner, or with the same weight.
Yet, in his Appendix reply, the late Dworkin seems to suppose that matters of fact
“in the Humean sense” cannot be contradictory, and thus principles cannot be, matters of
fact.68 This rendering by the late Dworkin is clearly at odds with the early Dworkin who
argued that it was the Herculean task of judges to arrange horizontal and vertical ordering
principles for the alleviation of just such inconsistencies. Here the late Dworkin appears
36
to be shifting the essential character of legal principles away from their role as human
constructions and rather towards their interpretation as brute facts of nature. It seems
perfectly reasonable that contrary moral principles may as a matter fact be embedded in a
single institutional morality. Such an institution would then be incoherent, only if there
were no ordering principle sufficient to justify such an arrangement.
The late Dworkin does make a further move to justify his concern with Richards’
reading of the early Dworkin as relegating principles to mere matters of fact. The late
Dworkin points out that matters of principle in the law may depend on the background
moral assumptions that give rise to these principles in the law.69 In this respect the late
Dworkin may be in accord with the early Dworkin since the background morality that
justified a piece of legislation is not a matter of fact, but of individual morality. Yet,
there is no serious challenge implied by such reconciliation for Richards’ reading of the
early Dworkin. Principles embedded in the law are still facts about the law, but it may be<JA
a contingent fact that they also reflect a general background morality.
Perhaps the clearest statement of the late Dworkin’s position comes when he
writes, “I do not think that there are agreed criteria of superior theoretical explanation.”71
The implication is, of course, that no criteria for a better fit within the institutional
morality can be found. Judges, the late Dworkin seems to be saying, do not, nor can they
be expected to, share in any aesthetic preference for one argumentative style over another
to figure the best justification for existent rights. He moves on to deny the claim that one
must either, insist that the law is a matter of fact, or deny any distinction between law and
morality. Yet, by supposing that no criteria can be established for choosing between
37
arguments of institutional morality, the late Dworkin appears to be taking a different
position.
The late Dworkin appears to be making an attempt to highlight the notion that
legal principles are not merely matters of fact, but also represent more thoroughgoing
moralities. Unfortunately, the move to highlight this feature of legal principles takes him
away from his earlier notion that some best fit could in fact be discovered outside of such
general background moralities. There seems no reason Dworkin cannot maintain his
earlier position that there is indeed a best way (although that way may only be revealed in
hindsight) and simultaneously assert that this best way reflects a particular background
morality.72 In fact, that is just how we read the early Dworkin to account for the
important point about the need for a common morality to integrate the law.
Without a convincing reason to suppose that legal principles are not at least in
part matters of fact, we ought to continue to follow the early Dworkin in his pragmatic
solution to the difficulties inherent in a separability thesis. For the early Dworkin, in hard
cases the responsible judge confronts conflicting principles, weighing them in
relationship to one another with an eye toward creating a consistent narrative about the
morality of this legal system. Common law has often been described as a chapter play,
where many participants tell a chapter of a story each building upon the others.
Dworkin’s early claim is that, in cases where conflicting principles must be weighed, that
principle which is most consistent with the rest of the story as told by others should be
chosen. Dworkin’s narrative of principles told in connection with rules of law gives body
to an intangible shared morality to which any notion of a robust legal system must appeal.
38
The web of moral principles Dworkin analyzes in “Hard Cases ” is grounded in
the principles developed by the society itself in the form of institutional rules. Judges
then further develop this loose network of moral principles by attributing weight to them.
Often the weighing process is done by method of trial and error. Judicial maneuvering is
a process like the conversation surrounding the telling of a chapter play, there is a
discussion during each new chapter about how it fits into the last, how this could be made
better or worse. In the end there is a factual claim to be made about what changes make a
chapter fit better or worse in the context of the overarching narrative, the institutional
morality.
In the final sense, by using moral judgment as the arbiter of decisions of law,
judicial discretion plays an important role in understanding law; this is why all societies
seek genuinely wise people for the profession. Yet, one cannot be too quick to claim that
judicial discretion alone creates the law. Dworkin argues for an enormous amount of
restraint on, for example, legal moralism, including the founding of such morality in the
institutional character of society and the use of rights conferring principles rather than
broad social policy standards. Moral principles thus have a role to play in how we
understand the law, but that role is still limiteB in liberal states to the liberal social aim of
the law in the first place. In other words, while the law is undeniably understood in terms
of moral principle, that understanding is restrained by the character or pedigree of the
moral principles thought to be applicable in a particular liberal legal system.
Hart’s requirement of obligation was that the law is understood to have some
ultimate source of authority, appeal to which would render certainty of understanding to
rules of law. Dworkin’s appeal to consistency in interpretation, a consistency based on
39
the principles underlying rules themselves, offers an account of authoritative
interpretation creating obligation. While the rule-based certainty Hart sought in final
decisions is not present in Dworkin’s method of understanding law, a certainty of method
is, and this methodological certainty is all that Hart need require. By basing an
understanding of the law in hard cases on the moral principles hanging behind legal rules
in “Hard Cases, ” Dworkin offers an account which provides the certainty needed to
draw people into law’s obligation and the moral narrative needed to continue the work of
law. In the end, Dworkin’s reliance on principles seems to affirm the important
requirements of positivism and provide a sense of the minimum shared morality legal
obligation requires.
PART III. Hart’s Postscript Response
Hart replies to Dworkin in his postscript to the second edition of The Concept of
Law, writing “Principles are an important feature of adjudication and legal reasoning.”
He continues, “Much credit is due to Dworkin for having shown and illustrated their
importance... and certainly it was a serious mistake on my part not to have stressed their
non-conclusive force.”73 Here Hart’s ‘their’ refers not to principles, but to his conception
of rules. While acknowledging Dworkin for the importance of pointing out the necessity
of non-conclusive principles Hart also maintains that his earlier account of rules is not
limited to binary conclusive applications as Dworkin maintained. Recall that Dworkin
described rules as “applicable in an all or nothing fashion”74 and claimed that such binary
application created the consistency Hart used to justify obligation to a set of laws.
Dworkin’s modification points out that consistency within a set of systematic
values need not appear in the form of conclusive rules to be coherent. In fact such
40
conclusive rules alone relegate decision making in hard cases to such a degree of
unpredictability that obligation seems jeopardized. On Dworkin’s account, the
coordination of legal principles underlying a system of rules into a broad picture of the
law may create a system of consistency implying obligation without entailing only
conclusive rules. Hart seems to agree with this basic picture of obligation, and makes a
case for the flexibility of rules in this sort of context. Rules, Hart argues, are describable
in identical terms to principles, only varying by a matter of degree and thus do not require
any significant alteration.
Hart points out that for Dworkin legal principles have weight, that is, they count
but may be non-decisive. In accord with this conception of principles, Hart claims “a
valid rule determines a result in cases to which it is applicable, except where another rule,
judged to be more important is also applicable.”75 Here Hart clearly embraces the notion
of rules as non-conclusive, and seemingly loses some ground in his earlier argument for
clarity and consistency in creating obligation. But if we suppose that he adopts the
modification of positivism’s theory of obligation suggested by Dworkin this appears to
create no real trouble for his theory. Hart is, with such a modification, able to claim
consistency in the same broad systemic w;ay that the early Dworkin views principles as
creating a coherent and consistent picture of a legal system.
Following on the heels of his apparent concession, Hart does however point out a
criticism of Dworkin’s strong distinction between rules and principles.76 It is incoherent,
he argues, for Dworkin to suppose that a legal system may simultaneously contain all-or-
nothing rules and non-conclusive principles. Hart’s contention is that in Dworkin’s own
examples of principles, such as the principle ‘no one may profit from wrongdoing,’ they
41
are in competition with rules over which carries more legal weight. The example found
in Riggs v. Palmer77 asserts that in at least some instances principles seem to have more
weight then rules, since the “clear language of statutory rules”78 is trumped by principle.
This leads Hart to claim that “rules do not have an all-or-nothing character, since they are
7Qliable to be brought into conflict with principles which outweigh them.”
At the broadest level, Hart seems to be claiming that any competition between
rules and principles indicates an assignment of weight to rules, which indicates a non-
conclusive status to rules. This seems to me a serious challenge to the notion of all or
nothing rules, but it is not in itself a devastating critique. It seems perfectly consistent to
say that rules both have weight and are applied in an all-or-nothing fashion. All this sort
of move requires is that rules each carry the same weight so that two valid rules cannot be
brought into conflict. Then rules either apply or do not and no conflict between them can
be settled based on their relative weight, only their terms of applicability. In relationship
to other rules this would indicate an all-or-nothing character and seems to represent the
sort of certainty Hart earlier sought in his theory of rules.
Yet, Hart presents a possibility beyond the confrontation of rules with other rules
by stressing the possibility of principles confronting rules. The possibility of principles
outweighing rules confirms Hart’s argument that rules cannot have an all or nothing
character, because even when they apply they may still fail to be decisive in light of an
overriding principle. In such an instance the weight of a rule, not its terms of
applicability, is decisive and thus the rule must be considered against countervailing
pressures and is not applicable in an all-or-nothing fashion.
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One might wish to maintain the strong distinction between rules and principles as
a matter of efficiency in the production of certainty and obligation. It seems the more we
are able to limit standard cases of adjudication to binary determinates like the standard
conception of rules the less we must rely on the admittedly difficult interpretive task of
evaluating weight as in the case of principles. In this light it seems to me there is a clear
avenue of response to Hart’s weakening of the rule/principle distinction. On Hart’s own
account principles contribute to the justification of rules and in so doing it seems they
distinguish themselves fairly straightforwardly from rules.80 But, more to the point, as
foundational to rules, principles provide the possibility of a rules legal status, so that if
the principle justifying a rule is overridden by another principle the rule not only doesn’t
apply, it doesn’t exist.
The claim here is that a conceptual “stacking” orders operations in such a way
that the resolution of conflicting principles occurs prior to the justification of a rule. In
such a case a rule may exist in a constitution say, and some secondary rule may pick it
out as valid, but without the support of principle these are insufficient conditions to entail
obligation to the law. Hart gestures at this counter-argument when he writes “on this
view a rule will fail to determine a result in a case to which it is applicable according to
its terms if its justifying principle is outweighed by another.”81 What Hart fails to notice
is that while the rule may still appear applicable on certain terms it will nevertheless have
been rendered so only in an extralegal sense. That is without a justificatory principle the
rule does not carry the weight of law, at best it carries the threat of enforcement. So
while there may be an artifact indiscernible in form from a legal rule, the moral force of
43
law’s obligation would be missing from a rule without a justificatory principle of
dominant weight.
Hart’s second criticism of Dworkin concerns the manner in which one might
identify a legal principle and thus provide justification for legal rules. On Hart’s account,
the operation of secondary rules of recognition makes possible the identification of legal
principles. On Dworkin’s account, “the hidden structure” of law is revealed by the
construction of legal principles into a holistic picture of legal history including secondary
rules. Hart’s argument is in two parts, first, he claims that secondary rules of recognition
can often point out precisely what principles are elements of law, and second, in instances
when secondary rules cannot precisely pick out legal principles they must still be relied
on in the process of constructing such principles.
Hart’s first contention, that a principle, or non-conclusive legal standard, may be
picked out by pedigree in the manner commonly attributed to secondary rules seems
relatively unproblematic. As an example Hart cites Dworkin’s argument that the
Constitution’s First Amendment is not a rule but a principle. Hart contends that if the
First Amendment is a principle, then clearly “a statute may be taken as intended toO 'J
operate in the non-conclusive way characteristic of principles.” From this proposition
Hart wants to conclude that legal principles are identifiable in virtue of their being things
like statutes. This of course is problematic in so far as not all statutes are principles; even
on Hart’s account some quite (though not perfectly) conclusive rules are identified by
secondary rules in virtue of their inclusion in statute.
The real thrust of Hart’s first point comes when he claims that “some legal
principles... such as that no man may profit from wrongdoing, are identified as law by the
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‘pedigree’ test in that they have been consistently invoked by courts in a range of
different cases.”83 Here Hart is indicating that in each relevant new case a court must
consider previous exposition of legal principles in their decision making. In so doing the
court identifies principles not through any holistic interpretive act, but in virtue of a
secondary rule of recognition. So, for example, the principle that no one should profit
from wrongdoing is accepted as a legal principle not because it best fits the institutional
history of the American legal system, but because this principle has been identified by
recognized sources of legal authority.
We might still abandon rules of recognition by claiming that some holistic
interpretation of principles, including the one about profit and wrongdoing, becomes
revived in the training of each generation of lawyers. In this instance we would not find
the use of legal principles an assent to some secondary rule with independent authority,
but the memory of an interpretation already made (in law school perhaps). I think this
position is defensible but in the end it seems to be working toward the reduction of a
jurisprudential “toolkit.” Moreover, if each generation of lawyers is simply indoctrinated
into some previous interpretation, it seems as though accordance with earlierQ A
interpretation becomes the secondary rule that picks out legal principles. If an
institutional memory takes the place of actual interpretation, that memory carries the
force of law only in virtue of a rule of recognition and not because it coherently describes
the body of extant law.
Having made his case for pedigree as a standard of picking out legal principles,
Hart turns to those novel cases in which “principles cannot be so captured.”85 Hart
maintains that some principles may “have no other feature that would permit their
45
identification other than belonging to that coherent scheme of principles which best fits
the institutional history.”86 Yet, on Hart’s account, even these principles rely indirectly
on rules of recognition. Hart claims that the content which identifies some principles as
such independent of their pedigree is in fact only accessible because of rules of
recognition. Hart’s claim is that since some legal principles owe their status “to their
content serving as interpretation of settled law” 87 the identification of such principles
requires some independent rule of recognition that defines what counts as “settled law.”
The identification of principles in the first instance does seem to require some
method of recognizing what counts as established law. If there is no way of determining
what a legal system has done, or even how it is constructed, I think Dworkin is obliged to
agree that the task of picking out its systemic principles is impossible. As Hart points out0 0
Dworkin is committed to a “preinterpretive law” in which some source of law is
authoritative in virtue of a consensus on assumptions or a shared paradigm of judicial
reasoning. Hart I think rightly claims that in this much each “explanation of judicial
identification of the sources of law is substantially the same.”89
Conclusion
The persistent difference between Hart and Dworkin is that Dworkin supposes
that the process of interpretation is consistently more morally involved than Hart is
willing to admit. Hart wants to argue that the identification of principles within the law
takes place as “a method of law recognition required by a mere conventional rule
accepted by the judges and lawyers of a legal system.”90 In this sense any given legal
system has some foundational pre-legal conventions, which admittedly are value-laden,
from which arise value-neutral rules and principles that justify these rules systemically
46
based on the system’s values. On this account simple rule application infers principles
from the minimum moral content of any legal system.
Dworkin essentially agrees that any legal system is based, as an initial matter, on
a set of value-laden presuppositions. Where Dworkin represents a conceptual split from
even the Postscript is in rejecting the idea that all principles or justificatory
interpretations spring unaltered from the initial presuppositions of a legal system. The
early Dworkin seems to argue that inconclusive moral principles require a level of
interpretation that goes beyond a static nearly conclusive reference to originating
principles. Dworkin appears to be arguing that the moral principles of a system develop
internally as they are used and applied within a legal system. Hart rejects this sort of
organic evolution of the internal moral foundations of a legal system.
Unlike the late Dworkin, who would seemingly argue that even external and
novel moralities might appear in the form of legal principles, the early Dworkin is limited
to saying that some development of initial moral foundations are discoverable through
judicial interpretation. Hart rejects even this sort of development of moral principles
within a legal system and argues that beyond the necessity of a founding moral content
all interpretation takes the form of rules. On Hart’s account, a rule-like necessity entails
the outcome of interpretation based on the initial conditions of a legal system.
Interpretation for Dworkin is more robust than this, and indicates the tracing of moral
development from within a system.
In its applied context, Hart’s Postscript seems to maintain his earlier position that
judges in hard cases are compelled to create new law. Hart’s argument to the effect that
secondary rules condition the interpretation of principles points out his continued
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commitment to restricting moral development within legal standards. Dworkin, while
constrained to accept many of Hart’s conclusions about the necessity of secondary rules,
seems to consistently maintain the appropriate role of judicial discretion. For Dworkin
the emphasis need not be on the importance of rules in the continuing process of
interpretation, rather he is free to emphasize the development of principles as they are
applied and reapplied. In emphasizing the minute shifts in context implied by each
contingent application, Dworkin may agree that rules condition the interpretation of
principles while acknowledging the developmental role played by the judiciary.
In the final analysis the difference between Dworkin and Hart seems to be far
less substantial then their ground of agreement. Each theorist wishes to maintain that the
law has a moral character implied by the procedural mechanisms employed in its
justification. Whether called rules or principles both Hart and Dworkin also agree that
the application of law is a less than precise operation requiring the weighing of various
important legal standards. Hart simply wants to collapse the legal rules and principles
into a single kind in order to fend off the intrusion of a moral character into the
interpretation of law. Interpretation he argues is matter of applying standards and not an
illumination of a legal system’s broad character.
I have argued that Dworkin may be forced to concede that the interpretation of
legal principles does require some nearly conclusive standards on what counts as legal.
But once consensus about such standards is reached there is no reason to suppose legal
principles will advance in an unaltered state. Remember, rules on Hart’s account are
nearly conclusive so even a strict reliance on rules in the interpretation of principles
allows space for development. In this sense then legal rules and principles are distinct in
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their capacity for content development. Legal principles reflect the morality of a legal
system and as the system removes, replaces, or instantiates new rules the weight
associated with corresponding principles is changed. Rules may not apply in an all or
nothing fashion but their weight does not change with respect to one another, principles
on the other hand reflect a growing momentum in which relative weight shifts as the legal
system develops.
Finally, since the weight of legal principles shifts, the process of judicial
interpretation must, to be consistent with these shifts, involve some regard for the
development of the procedural morality reflected by legal principles. That is to say, the
moral underpinnings of a legal system must have a substantive impact on decisions
within that system if the common law is to develop consistently. I have not attempted to
shown that Hart is required to agree to this contention, but he is certainly taking steps
down this road when he assents to the need for interpretation of non-conclusive rules.
Overall Hart’s acceptance of Dworkin’s emphasis on legal principles moves the
discussion of morality and the law forward and for that we can be grateful.
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1 Brian Leiter, “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence,” p. 1.2 Earlier here is used to demarcate two distinct positions I attribute to Dworkin at different times in his career. Specifically, by earlier I mean the Dworkin of “Hard Cases” and “A Model of Rules,” and by later Dworkin I refer to the Dworkin of his Appendix replies in Taking Rights Seriously.3 Leiter, p. 2.4 In light of the generally shared conception of law’s moral methodological underpinnings, it seems to me future debate for legal philosophy might find more ferrite ground in discussion of the impact of such moral preconditions. Specifically, it seems appropriate to discuss the effect such foundational moral assumptions have on substantial issues in law, and to what extent such a feedback loop is antithetical to the moral principles which ground the systematic development of substantive legal rules. This discussion is in my estimation an important one, but may only be adequately addressed after getting clear on the development of legal systems.5 H.L.A. Hart, The Concept o f Law, 2nd ed., (New York: Oxford University Press, 1997) p. 95.6 Hart, p. 255.7 Ronald Dworkin, “Hard Cases,” reprinted in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).8 Hart, p. 2659 Hart, p. 26110 John Austin, “The Providence of Jurisprudence Determined,” reprinted in Legal Philosophy, ed. Larry May, et. al., (Mountain View, CA: Mayfeild Publishing Co., 2000) p. 72.11 There is some slight discrepancy in my use of classical natural law and Austin’s conception of law, insomuch as Austin narrows the scope of law to be applicable only to entities with a will, thus negating natural law in the classical scientific sense. I ignore this difference in our respective terminology in the interest of rhetorical clarity.12 Austin, p. 72.13 Austin, p. 79.14 Hart, p. 84,15 Hart, p. 84.16 Hart, p. 90.17 Hart, p. 90. The emphasis is original.18 Hart, p. 91.19 Hart, p. 91.20 Hart, p. 92.21 Hart, p. 94.22 Hart, p. 96.23 Hart, p. 97.24 John Rawls, A Theory o f Justice, (Cambridge, MA. Belknap Press, 1999) p. 207.25 Ronald Dworkin, “The Model of Rules I,” reprinted in Taking Rights Seriously, (Cambridge, MA: Harvard University Press, 1978) p. 45.26 Hart, p. 100.27 Hart, p. 101.28 Hart, p. 105. The emphasis is original.29 Ronald Dworkin, “The Model of Rules I,” reprinted in Taking Rights Seriously, (Cambridge, MA: Harvard University Press, 1997) p. 22.30 Ronald Dworkin, “Richards and Positivism Revived, " in the Appendix to Taking Rights Seriously, (Cambridge, MA. Harvard University Press, 1978) pp. 338-345.31 See the controversy over end of life ethics involved in the recent case of Terri Schiavo.32 Dworkin, p. 23.33 Dworkin, p.24-26.34 Riggs v. Palmer, 115 N.Y. 506.35 Ibid. p. 509.36 Ibid. p. 511.37 Dworkin, p. 26.38 Ronald Dworkin, “The Model of Rules I I” reprinted in Taking Rights Seriously, (Cambridge, MA: Harvard University Press, 1978) p. 48.
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39 Dworkin, p. 29.40 Dworkin, p. 31.41 Dworkin, p. 32.42 Dworkin, p. 33.43 Dworkin, p. 35.44 Dworkin, p. 81.45 Dworkin, p. 84.46 Dworkin, p. 41.47 Dworkin, p. 87.48 Dworkin, p. 340, quoting himself in "Hard Cases. ”49 Dworkin, p. 112.50 Dworkin, p. 88.31 Dworkin, p. 89.52 Dworkin, p. 90.53 Dworkin, p. 101.54 Dworkin, p. 103,33 Dworkin, p. 103.36 Dworkin, p. 105.37 Ibid.38 Dworkin, p. 107.59 Dworkin, p. 109.60 Dworkin, p. 111.61 Dworkin, p. 111.62 Dworkin, p. 113.63 Dworkin, p. 116.64 David A. J. Richards, “Rules, Policies and Neutral Principles: The Search for Legitimacy in Common Law and Constitutional Adjudication,” Georgia Law Review, Vol. n, p. 1069.63Richards, p. 1092.66 Ronald Dworkin, Appendix to Taking Rights Seriously, (Cambridge, MA: Harvard University Press, 1978) p. 340.67 See above, note 5968 Dworkin, p. 342.69 Dworkin, p. 342.70 The late Dworkin himself points out that the non-factual component of a principle, “is never identical with... what background morality requires” p. 342. It is difficult to see how Richards is really wrong in calling legal principles mere facts, but it seems reasonable to assent to Dworkin’s claim that they also reflect something different than a fact.71 Dworkin, 341.72 Unless, of course, he also holds some belief about what that morality must be. But Dworkin is clear throughout his work that the law need not represent any specific or good morality.73 Hart, p. 263.74 Dworkin, p. 24.75 Hart, p. 261.76 Hart points out that he has already made these points at pp. 130-134, yet this non-conclusive version of rules seems to present a clear difficulty to his own theory of obligation. Since this difficulty is resolved more clearly in Dworkin, I use the phrase seeming concession as an indication of the value added by Dworkin’s contribution. •77 Cf. notes 33 and 36.78 Hart, p. 262.79 Ibid.80 Hart, p. 260.81 Hart, p. 262.82 Hart, p. 264.83 Hart, p. 265.
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84 This relies on the conception of a lawyer’s education as indoctrination, as opposed to critical evaluation, but most legal professionals and law school admissions counselors seem to agree with this characterization.85 Hart, p. 265.86 Ibid.87 Hart, p. 264.88 Hart, p. 266.89 Hart, p. 267.90 Ibid.